Results tagged “child” from Sacramento Family Law

In today's economy, everyone's dealing with financial pressure. Whether you are paying or receiving spousal and child support payments, you may be facing a lot of challenges these days. Either the payor or the payee could be out of a job or dealing with reduced hours and a reduction in pay. Either way, those alimony and child support payments are probably weighing heavily on your mind.

If you're behind on your alimony or child support -- or if your ex is -- you may be wondering whether bankruptcy will make those back-payments go away. It won't.

Alimony and child support payments are not dischargeable in bankruptcy. In fact, under bankruptcy law, spousal and child support payments have to be paid before any other creditor can take a piece of the debtor's assets -- even the tax man.

What Should I Do If My Ex Owes Child Support and Alimony And Is Filing for Bankruptcy?

Just because the law doesn't allow alimony or child support to be wiped out by bankruptcy does not mean you don't need to protect your interests. Just like any other creditor, you should make sure the bankruptcy court knows that you're pressing your claim by filing a "nondischargeability complaint" concerning any alimony or child support you are owed.

Both the bankruptcy trustee and the Child Support Enforcement program should notify you if your ex has filed for bankruptcy, so you should never be taken by surprise. Even if you do nothing, it is unlikely that the bankruptcy court would discharge the back-child support or alimony arrearages your ex owes you, but it's always a good idea to get good legal advice and protect yourself.

Continue reading "Bankruptcy Won't Clear Up Spousal or Child Support Arrearages" »

Tony Gonzalez still calls his 15-year-old daughter "daddy's little girl."

They listen to heavy metal music and play cards together. He takes her to meet friends at the movies and proudly calls her an excellent swimmer.

But Gonzalez can't do some things he considers fatherly duties, such as giving Sandra an allowance or taking her shopping.

And after losing his job of 20 years in August, Gonzalez can't afford to pay Sandra's mother the $221 per month he owes in child support.

"It's heartbreaking," said Gonzalez, 42. "I don't want to be known as a deadbeat dad."

Gonzalez's story is a common one heard in Stanislaus County Superior Court's Department 16.

More and more parents, mostly fathers, are crowding the Modesto courtroom to plead with a judge to reduce their child support payments.

They talk about salary cuts and homes in foreclosure. Unemployment rates, which spiked at 19.2 percent countywide in March, make it nearly impossible for some to keep up with their payments.

Three years ago, Stanislaus County withheld $1.5 million in unemployment benefits to cover the child support obligations of parents who don't have custody.

Unemployment benefits now make up $4.8 million of the county's child support take.

In years past, family law attorneys usually heard from parents who wanted more child support taken from their former partners.

Now, it's the reverse.

"It's people who have longtime jobs who are losing 10 to 15 percent of their pay or are on unemployment right now," said E.F. Cash-Dudley, a family law specialist in Modesto. "It's having a profound effect. We see a number of families that are just barely surviving."

'Hammer' used less

Tamara Thomas, assistant director of the county's child support agency, said her office has taken a more empathetic approach as she sees parents with a history of consistently paying child support fall on hard times.

"It's been less of the hammer approach," Thomas said.

The "hammer" can be as much as 75 days in jail for repeated failure to pay child support.

Child support payments can vary widely based on a family's unique situation, but a parent can expect to pay up to one-third of his or her income to support one child and as much as half of his or her pay for three or more children.

Nine out of 10 noncustodial parents in Stanislaus County are men, and they have been disproportionately affected by the recession because of the hit to male-dominated jobs in construction and manufacturing.

Continue reading "Pleading for child support break in Stanislaus County" »

When financial stress forces you to file for bankruptcy, child-support payment obligations remain in place and are not dischargeable by filing for bankruptcy. All expenses that are considered as 'in the nature of support' for your child like those spent in the child's welfare, medical care and upbringing, are also not dischargeable in the event of bankruptcy.

Case of ex-spouse paying child support:

If you are an ex-spouse paying child support, whatever expenses you owe - back child-support and the current amounts you owe - whatever is due is still your responsibility and you have to pay them. And supposing there are any debts incurred to meet the 'in the nature of support' expenses - like expenses incurred towards meeting medical expenses and routine care, those debts also need to be paid by you, and bankruptcy does not absolve you from paying these charges.

Effect of stay orders on child support:

In case you are a provider of child support and you have filed for bankruptcy, under a Chapter 7 stay, action can still be taken to ensure that you pay for your child support. A Chapter 13 bankruptcy may provide you a temporary stay from payments towards child support. But any stay is only temporary.

Bankruptcy ensures payment of child support:

Actually if you happen to want to genuinely pay for the child support but had been unable to because of other payments, bankruptcy is the best option for you. Once you file for bankruptcy, you can prioritize the child support payment as required by the law and pay it first and you are given time to pay other debts subsequently.

Whatever income you receive automatically goes first to meet the child support, while other debts take backstage. Bankruptcy filed under both the Chapters 7 &13 ensures that child support is paid at the first instance. Even property exempt from the claims of creditors and lenders can be used for enforcing the child support payments.

Case of ex-spouse receiving child support:

If you are collecting child support, filing for bankruptcy will not protect the ex-spouse/child-support giver from paying the back or current child support. Filing for bankruptcy is not an escape route from payment of child support. Child support has to be paid before paying even those debtors who have initiated the action. The receiving spouse can seek legal recourse for speedy and regular payment of child support.

Payment of child support - back, current and future support:

After bankruptcy is filed, especially under Chapter 13, child support payment becomes an essential part of the reorganization of debt plan. Non-payment of back, current and future child support may nullify the bankruptcy and penalties may be imposed. All other obligations - payday loans, credit cards or medical bills - take a back seat and the highest priority is to the back, current and future child support payments.

As per government rules, 'domestic support obligations' take precedence. When you file for bankruptcy, the actual fact is that as a provider ex-spouse/parent, you are still responsible for back or current future payments towards those obligations.

Continue reading "Child Support and Bankruptcy" »

The slumping economy has taken a toll on everyone, including parents who are responsible for paying child or spousal support. While you cannot simply stop making payments, in certain situations you can ask the court to modify your payments. If your current financial situation has it made it difficult to afford your payments, be sure to act quickly to prevent additional financial or legal troubles.

Child support payments are based on the income of both parents and on the amount of time each parent spends with the children. If there is a change in either one of these conditions, then you may ask a court for a change in child support payments. Child support payments are calculated based on state law guidelines and courts tend to follow them strictly. A major change in income is an important factor to be considered in these calculations and may lead to a change in support payments.

While a judge may grant a modification of your child support, he/she may want to know what you are doing to increase your earnings. A judge may order you to send out a preset number of applications and report back to the court on their status. When you return to the court, the judge may once again modify the payments based on any major change in income such as when a higher paying job is obtained.

On the other hand, spousal support can generally only be modified in accordance with the terms set out in the final divorce judgment. If the divorce judgment permits a modification of payments due to loss of income, then you may be able to modify the payments.

If the parent receiving child care from the other parent becomes unemployed, then there is potentially no need for child care payments. A court will likely reduce or remove child care payments in this case.

If you need a modification of child support in Sacramento and Northern California, act quickly. Falling behind on child support could potentially lead to a loss of your driver's license, professional licenses, and inability to obtain a new or renewed passport.

The foregoing is based on general principles of California family law, and should not be construed as legal advice. For specific legal advice, contact a family law attorney.

Most family law attorneys would agree that the most emotionally involved and heavily contested component of family law involves battles over child custody and visitation. Client confusion over the practical and legal distinctions among the various custody arrangements typically serves to further complicate these matters. This highlights the importance of rendering an understanding of the relevant legal terminology applicable to custody arrangements. The starting off point is the distinction between the two forms of custody: Legal and Physical.

Legal vs. Physical Custody

I can't count how many times a client has entered my office and flatly stated that they want "sole custody" of their child(ren). Clients typically, however, do not distinguish between legal and physical custody. Usually such a comment reflects the potential client's desire to have the child live primarily, or exclusively, with them. (A physical custody arrangement) This is when the client must learn about legal custody, the other component of custody arrangements.

Legal Custody

Legal custody arrangements govern the parents' respective rights to be involved in important decisions regarding the upbringing of their children. The most common of these "important" decisions involve those related to the medical, dental, and educational needs of the child.

A knee-jerk reaction of a parent who desires "sole custody" is to request sole legal custody in addition to sole primary custody. This makes sense. After all, if the other parent cannot be trusted to spend significant time with the child, then he or she probably cannot be trusted to make important decisions on the child's behalf either, right? At this point, parents need to understand that courts do not tend to strip a parent of legal custody, unless there is some compelling reason to do so. In other words, sole legal custody does not necessarily flow from sole (or primary) physical custody.

Parents also should understand that a joint legal custody arrangement (as opposed to sole legal custody) will not have a meaningful impact on their day to day decision-making vis-à-vis their child. A joint legal custody arrangement does not mean that one parent will have to receive the permission of the other parent before taking a child into the emergency room or to a routine medical examination. Neither does it entail that a custodial parent must inform the other parent of every occurrence with respect to the child's schooling. Each parent typically bears the independent duty to keep abreast of the child's school schedule as well as the child's academic performance and progression. The idea is that parent's are obligated to consult with one another only with respect to major decisions.

Physical Custody

There are a number of ways to describe the various physical custody arrangements. As an initial matter, as they do with legal custody, the courts distinguish between sole and joint physical custody. And as they do with legal custody, the courts typically prefer to grant joint physical custody, absent some set of circumstances that would justify awarding sole physical custody to one parent. Contrary to the belief of most clients, when the court does award one parent sole physical custody, this does not mean that the other parent is denied parenting time with the child. Public policy of the State of California dictates that it is in the best interest of children to have frequent and continuing contact with both parents, regardless of the sole vs. joint physical custody arrangement. In other words, the courts distinguish between custody and visitation.

When the court awards the parents joint physical custody, the next step is to determine the respective parenting time of each parent. The court can order a true joint physical custody arrangement in which each child spends approximately half of their time in the physical custody of each parent. Alternatively, the court can award "primary" physical custody to one parent and "secondary" physical custody to the other. The parent with "primary" physical custody (referred to as the custodial parent) is awarded the majority of parenting time, while the other parent (referred to as the non-custodial parent) is awarded less significant, but consistent parenting time.

Common Misconceptions

As stated above, the most common misconception is that an award of sole physical custody will effectively terminate the other parent's right to visit with his or her child. A related misconception is that an award of primary physical custody has the same effect as an award of sole physical custody. While the immediate, practical consequences of these differing orders may seem the same, there are significant differences in the legal impact of these awards.

In particular, when sole physical custody is awarded to one parent, the burden of altering this arrangement to one more favorable to the parent without physical custody is usually much greater. This is even more likely when the order issued is a permanent custody order. What's more, a parent with sole physical custody has the presumptive right to relocate with the child, which can play a very significant role in so called "move-away" cases.

Recent Judicial Decisions

The fourth district of California recently touched on the importance of the characterization of the custody order in the unpublished case, Irmo Witzman. In this case, the parents went to trial on the issues of custody and visitation. The parties were awarded joint legal custody with "primary physical custody" to the wife. Three years later, Husband filed a motion requesting sole physical custody to him, with visitation to the wife. The court ultimately maintained the joint legal custody order but modified the parenting plan to a 50/50 arrangement. Wife appealed.

On appeal, Wife argued that the trial court altered the physical custody judgment, and could only do so after Husband made a showing of "substantial change of circumstances." (Which would be an accurate argument under current case law) The court, however, determined that the "substantial change of circumstances" standard did not apply in the current case because the trial court's award of "primary physical custody" to Wife was not an award of sole physical custody. The court of appeals determined that such an award could only be construed as an award of joint physical custody. As such, the shift to a 50/50 parenting plan was not a change in custody, but a mere restructuring of the parenting arrangement.

Conclusion

The myriad of potential custody and visitation arrangements can be overwhelming to the uninitiated. Without a proper understanding of the practical and legal consequences of each potential arrangement, it is difficult, if not impossible, for a parent to intelligently assess what arrangement is in their best interest. It is equally difficult for such parents to fully comprehend what rights and responsibilities they have vis-à-vis their child after a custody order is rendered. This highlights the necessity for parents who are in need of a custody order to seek advice from a family law attorney. It also highlights the importance for attorneys to provide their clients with a clear understanding of these issues before acting on their behalf.

Continue reading "Demystifying Child Custody Terminology and Arrangements" »

The issue of paternity and child support obligations sometimes comes up when a couple divorces. If the father has questions about whether the child really is his, he may request a DNA test to prove he's the biological father. If it turns out that he's not the child's father, there's a chance he may not have to pay child support.

Whether child support will be ordered in such situations will depend on the circumstances of the case and the state in which the child support issue arises. In some states, if a man is the presumed father of the child, then he may be required to pay child support. A man may be presumed to be the father of a child (unless he or the mother proves otherwise to a court) based on the following circumstances:

• The man was married to the mother when the child was conceived or born.
• The man married the mother, but the marriage was invalid for some reason, and the child was conceived or born during the invalid "marriage."
• The man married the mother after the birth and agreed either to have his name on the birth certificate.
• The man signed a document for "Acknowledgement of Paternity."
• The man welcomed the child into his home and claims the child as his own.

That's just a brief overview of the paternity and child support issue. Below, you can read over the various questions and answer to get a better idea of individual circumstances.

Continue reading "Paternity and Child Support" »